Full US 6th Circuit Court of Appeals refuses to reconsider dismissal of lawsuit challenging Ohio's lethal injection protocolToday's order denying an en banc rehearing of the court's earlier dismissal of the Cooey v. Taft case challenging Ohio's lethal injection protocol is here (3-page pdf). (Judges Gilman, Martin, Daughtrey, Moore, Cole and Clay dissented and would have allowed a full court rehearing.)Today's ruling upholds the court's March 2, 2007, 3-judge panel ruling by the court dismissing the lethal injection lawsuit based on a statute-of-limitations consideration.March 2 ruling dismissing the suit is here (17-page pdf). Earlier coverage here.Important note: Today's ruling could lead to setting of new execution dates for several inmates who had been allowed inclusion in the lawsuit (which has been on hold in US District Court pending the 6th Circuit's ruling). Today's ruling may also result in the lifting of stays of execution currently in effect for Richard Cooey, Jeffrey Hill, Jerome Henderson, and Kenneth Biros. (It's not clear if the stays currently in effect will remain in place while attorneys attempt an appeal to the US Supreme Court.)

-------------------------------------------------------------------Looks like the 6th Circuit has their act together.

god bless the 6th! now let's get the party started and see some dates set and carried out.

<br /><br />If there must be trouble, let it be in my day, that my child may have peace. -Thomas Paine<br /><br />My reason for supporting capital punishment: My cousin 16 yr. old Amanda Greenwell was murdered in March of 2004 at the hands of serial killer Jeremy Bryan Jones.

Durr was sentenced to death on Dec. 19, 1988, in Cuyahoga County Common Pleas Court for the rape, kidnapping, robbery and murder of Angel Vincent, 16, of Elyria. She disappeared Jan. 31, 1988. Her body was found in a ravine at Denison Ave. and Fulton Rd., on April 30, 1988.

As he has in rulings regarding other inmates, Judge Frost determined that the five met a deadline to join the lawsuit.

The state opposes the lawsuit, arguing the deadline for filing was missed and that the clock begins ticking toward the cutoff when state appeals run out. The inmates argue the timeline begins when all possible appeals -- including those in federal courts -- have been exhausted.

Frost's ruling brings to 20 the number of death row inmates challenging the injection process.

The inmates "each have a significant interest in this case" because they could still face an execution while the lawsuit proceeds, Frost said. None of the inmates have a scheduled execution date.

Late last month, Attorney General Marc Dann sued in the state Supreme Court in an effort to stop a Lorain County judge from ordering Ohio to reveal details of its execution process.

The order by Judge James Burge came in the case of Ruben Rivera, who was indicted in 2004 on an aggravated murder charge carrying the possibility of the death penalty. Rivera, who awaits trial, has filed a motion declaring the death penalty unconstitutional.

In response, Burge ordered the prisons department to describe its method of execution, including a detailed list of all supplies and procedures, how the injections are done and where the lethal drugs are stored.

Dann argues Burge does not have the authority as the presiding judge of a criminal trial to decide the constitutionality of the death penalty law. ------------------------------------------------------------------Started a new thread on this one. In related threads have pointed this is going to end up at the Supremes and not sure if they will hear it or not. Interesting that there are now 20 joined in this case. Some of them have had previous execution dates set but by joining the suit they have been stayed.

I think this Judge Burger is way exceeding his authority about the LI procedures in Ohio and hope he gets slapped down.

ELYRIA, Ohio -- A 700-page binder on how the state executes death row inmates has been turned over to a judge who is considering whether the lethal injection procedure is legal.

The materials were given to Lorain County Common Pleas Judge James Burge on Wednesday in the challenge filed by two murder suspects facing death penalty trials. It's the first time the state has released such information.

The judge gave a copy to defense attorneys involved in the challenge but agreed with a state request to withhold the materials from attorneys handling other death penalty cases.

The binder has records on past executions and details on drug concoctions, supplies and materials used to carry out executions. The binder also lists qualifications and training of the 16-member execution team, but does not identify those individuals. The items remained sealed from the public.

Information has been released that's never been available before, said Jeffrey Gamso, an American Civil Liberties Union attorney representing defendant Ruben Rivera.

Under Ohio's current death penalty law, the state has executed 26 inmates by injection since 1999.

The judge plans a hearing next month with expert testimony on whether lethal injection is unconstitutionally cruel and unusual punishment. The hearing is unusual in that Burge will rule on the constitutionality of the execution procedure before the trial.

Burge told state prisons Director Terry Collins and attorneys for the defendants awaiting separate murder trials in his court that his intention was to find out "whether this method is painful and if it is, how painful, and whether it is a protracted pain or momentary."

Burge was a former defense attorney who handled capital punishment cases before being elected to the bench in 2006.

Burge said Thursday he agreed with prosecutors' request to seal the documents from the public because they are evidence, and defense attorneys did not object.

He said he considers the documents public record but said requests to review them should go through the state.

"There is nothing that I can do to further the resolution of this matter by giving out the evidence," Burge said in a phone interview. "I don't have that authorization once the parties agree to it."

A request was made to the Department of Rehabilitation and Correction Thursday seeking the documents.

The state Supreme Court ruled in October that the judge has the authority to order the state to turn over documents related to the execution process. The state had argued that Burge does not have the authority to decide the constitutionality of death penalty law.

Gamso had said the high court's decision meant the state could no longer hide the process it uses for putting inmates to death.

Rivera, charged in the 2004 shooting death of Manuel Garcia, has asked Burge to drop the death penalty aspects of his case on the grounds that the state's lethal injection process amounts to unconstitutional cruel and unusual punishment.-------------------------------------------------------------------I really don't understand how this judge was allowed to get away with this. Just get this Baze ruling heard and settled and this will go away well until the next dog and pony show.

Ohio doesn't have an official moratorium on the death penalty, but a tangled combination of legal issues has produced an informal one after 26 executions spanning nine years.

The state carried out two executions last year, and four death sentences were handed down. Since 1999, when Ohio renewed executions, only one year saw fewer executions: 2001, when there was one.

As a result of the slowdown, there is a kind of backlog on Death Row, with 16 inmates considered closest to execution, but it is uncertain whether any executions will proceed in the near future, according to the annual Capital Crimes report compiled by Attorney General Marc Dann. The report does not predict when, or whether, those executions will happen.

The report is required by law to be sent to state officeholders and legislative leaders annually by April 1.

A lawsuit over the constitutionality of the lethal-injection process used by Kentucky and most other states, including Ohio, was argued earlier this year before the U.S. Supreme Court. Until the high court rules, state and federal courts nationwide have been unwilling to allow executions to proceed.

At the same time, Ohio has homegrown legal issues about lethal injection -- stemming from a case involving Richard Wade Cooey II, a Summit County man convicted of murdering two young women in 1986 -- as well as mental-retardation.

Both legal cases have been joined by several inmates, further slowing the machinery of the state's legal system, which as recently as 2004 sent seven men to their death at the Southern Ohio Correctional Facility near Lucasville.

The two executions last year were of James Filiaggi on April 24 and Christopher J. Newton exactly a month later.

Last year's four death sentences equaled the number in 2006. Between 2000 and 2007, the state had 50 death sentences. That's far fewer than the 123 from 1990 to 1999, according to Dann's report.

The 2007 report abandoned a practice used by two previous attorneys general by not summarizing cases that were inactive or stalled in either state or federal courts. The 2006 report, for example, listed 22 cases -- including three from Franklin County -- that had been inactive in state or federal courts for at least two years. One had been inactive for 14 years.

The three inmates who have fully exhausted their federal appeals are Jerome Henderson of Hamilton County, Charles Lorraine of Trumbull County and Gregory Lott of Cuyahoga County. None of the other 13 inmates closest to execution is from central Ohio.

The report, as in the past, includes information about 184 Death Row cases. Of the inmates, 52 percent are black, the average age is 44.3, and the average time on Death Row is 13.2 years.

Of the victims, 150 were males and 133 were females. Sixty-two percent were white; 60 were younger than 18.

COLUMBUS, Ohio (AP) -- Ohio's solicitor general says death penalty cases in Ohio's courts will move forward now that the U.S. Supreme Court has ruled on a lethal injection case out of Kentucky.

Bill Marshall says the court's decision will make it difficult for a group of about 20 Ohio inmates to continue arguing that Ohio's lethal injection procedures violate the constitutional ban on cruel and unusual punishment. Marshall handles litigation on behalf of the state.

The U.S. Supreme Court on Wednesday upheld Kentucky's injection process, which is similar to the one used in Ohio and many other states.

Some legal experts believe the court's decision wasn't definitive and leaves room for viable cases to be made against lethal injection procedures in other states.

As many as 22 Ohio death-penalty cases, backlogged because of an unofficial, seven-month moratorium on executions, might flood the legal system after yesterday's U.S. Supreme Court ruling that lethal injection is constitutional.

"Ultimately, the gates have opened," Ohio Public Defender Tim Young said after the court's decision in a Kentucky case.

Ohio might not move as quickly as some other states: Virginia immediately lifted its moratorium; Florida asked the Supreme Court to lift a delay in a pending capital case; and officials in Oklahoma and Mississippi said they will move swiftly to seek new execution dates for convicted murderers.

But Zach Swisher, chief of the criminal division for Ohio Attorney General Marc Dann and a former Franklin County assistant prosecutor, said the state is ready to return to the "normal processes and procedures" used before the unofficial halt on executions.

That includes working with county prosecutors to seek new execution dates for the inmates whose legal appeals have run out, Swisher said.

Ohio's last execution -- the 26th since 1999 -- was Christopher J. Newton on May 24.

Executions slowed, then stopped in Ohio and other states because of a legal challenge to the three-drug injection process used in Kentucky, Ohio and 33 other states. Opponents argued that the process might result in a condemned person feeling excruciating pain but being unable to express it because of the use of a powerful paralytic drug.

The Supreme Court rejected that argument, concluding in a 7-2 ruling that the lethal-injection process does not trigger a violation of the Eighth Amendment ban on cruel and unusual punishment.

"Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedures, the Constitution does not demand the avoidance of all risk of pain," Chief Justice John Roberts wrote. Dissenting were Justices Ruth Bader Ginsburg and David H. Souter.

Gov. Ted Strickland said he had not read the decision but noted that because the Kentucky and Ohio lethal-injection methods are similar, "You would think ... that the legal outcome would be similar, as well." The Democrat supports the death penalty.

Young, whose office represents 11 of the 22 cases that might get new execution dates, said there might be more litigation since Ohio law requires the death penalty to be "quick and painless," a different standard than Kentucky's.

However, Young said his office is scrambling to work out the legal defense for all 22 cases. Many cases have not begun the gubernatorial clemency process that must precede an execution.

"I believe there will be requests made within a week to move ahead with executions," Young said. "This places an incredible burden on the system to have that many cases at the same stage at once."

The inmates who have exhausted their federal appeals are Jerome Henderson of Hamilton County, Charles Lorraine of Trumbull County and Gregory Lott of Cuyahoga County.

Some legal experts called the Supreme Court ruling "narrow," saying it leaves room for new legal challenges.

"States and the federal government have cloaked their lethal-injection procedures in secrecy," said Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley School of Law. "But the discovery process has revealed alarming problems with the administration of lethal injection in many states, and nothing in today's decision prevents the lower courts in those states from addressing those problems under the Eighth Amendment."

COLUMBUS: The Ohio death row inmate whose name is attached to a closely watched lawsuit challenging the state's lethal injection procedure lost what may be his final appeal Monday.

The decision by the U.S. Supreme Court, which recently upheld the injection method in bordering Kentucky, could send Richard Cooey to the death chamber even as other condemned prisoners continue to fight Ohio's method of execution under his name.

Cooey was sentenced to die in 1986 for raping and murdering two University of Akron students.

Two other death row inmates -- Kenneth Biros and James Frazier -- also lost appeals Monday.

Cooey filed the lethal injection lawsuit in 2004, arguing that the cocktail of three chemicals used to put criminals to death in Ohio causes so much pain that it violates the Constitution's ban on cruel and unusual punishment.

But his case got caught up on a technicality: An appeals court said last year that Cooey had missed the deadline to file the suit. The three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ordered the casedismissed.

When the U.S. Supreme Court agreed on Monday, it left Cooey at a legal dead end.

''We're still trying to sort through what the options are,'' said Kelly Culshaw, an assistant state public defender. ''He doesn't have anything else pending in those courts right now.''

Cooey came within 12 hours of being executed in July 2003, when a federal judge delayed his execution to give his new lawyer more time to study the case.

Even if his attorneys find no other legal option for Cooey, that doesn't mean that Biros, Frazier or one of 17 other inmates who have signed onto the Cooey case won't continue their quest against injection, Culshaw said.

Although the Supreme Court last week upheld a similar execution method in Kentucky, Ohio's prescription for injection is slightly different and has encountered its own unique problems.

In one case, an inmate sat up on the gurney at the death house to say the chemicals weren't working, and another convulsed and twitched for many minutes before he died.

The Cooey suit and others that are pending could continue to affect Ohio's execution schedule -- creating an effective moratorium while arguments are aired in court, said Keith Dailey, a spokesman for Gov. Ted Strickland.

''Based on our initial understanding of the court's decision today, Mr. Cooey may no longer be able to proceed with this argument, because of the statute of limitations issue, but others named in the suit will likely continue to pursue the case,'' Dailey said. ''There are multiple cases pending, which may or may not have an effect on the entire system.''

Dailey said the governor, who supports the death penalty, will evaluate all cases that make it to his desk on their merits -- including Cooey's.

''The governor does not prejudge any cases based on court decisions,'' he said. ''He reviews each and every case separately and independently of the others and he will continue to do that.''-------------------------------------------------------------------Just schedule him and his cronies already!!

Ohio officials have been less swift and less aggressive than leaders from some other states at moving to restart executions after a U.S. Supreme Court decision ended a seven-month national pause to killing inmates.

Ohio, which not long ago had one of the nation's busiest death chambers, is led by a governor who has said he is not comfortable with the death penalty and top law enforcement officer who has said he thinks "we can do better" in applying it.

Gov. Ted Strickland has the power to cancel or delay death sentences, and Attorney General Marc Dann's office fights against death row inmates' appeals.

Since the U.S. Supreme Court decided April 16 to allow Kentucky's lethal injection process that is similar to the one used in Ohio and many others, states including Texas and Mississippi already have scheduled executions. And governors in states such as Florida have said the execution process should now resume.

Ohio has not set any execution dates yet, and top officials have made no public requests for quick action. The speed at which Ohio's death-penalty cases move forward depends on how quickly and forcefully Ohio officials respond, said Doug Berman, a law professor at Ohio State University.

Strickland's lawyers are still reviewing the federal court decision. And unlike some governors, Strickland has not made a definitive public statement about what he believes the case means. Ohio's lethal injection procedure still is being challenged in a lawsuit.

After the Supreme Court decision came out, this is what Strickland said about applying it to Ohio: "You would just think that because the methodology is quite similar that the legal outcome would be similar as well. But I just don't want to make that assumption without having a little deeper understanding about what they said."

Contrast that with what Charlie Crist, the Republican governor of Florida, said when praising the court's ruling: "Justice delayed is justice denied, and an awful lot of families of the victims have been waiting for justice to be done, and so that's certainly an important factor." Crist said he asked his lawyers to provide him with death warrants to consider signing, after which execution dates would follow.

Ohio has 184 inmates on death row, many of them exhausting their final appeals. Three death-row inmates are likely to be among the first set for execution: Clarence Carter, Kenneth Biros and Richard Cooey, who lost what may be his final appeal last week.

Only Texas had more executions in 2006 and 2007 combined than Ohio, which tied with Oklahoma at seven. Ohio has executed 26 inmates since it resumed executions in 1999. Strickland, a Democrat, has allowed two of three executions since he became governor in 2007, but he has yet to face the volume of capital punishment cases that landed on the desk of his Republican predecessor.

A few months after he started as governor, Strickland talked about his concerns about the death penalty with The Associated Press.

"I'm not comfortable with it," he said in March 2007. "I hope never to be comfortable with it. But it is the law and I have assumed this responsibility as governor."

Strickland's legal staff is reviewing information on death-penalty cases that will begin moving forward so he is ready for the clemency process.

The Ohio Supreme Court sets execution dates after evaluating motions that usually come from the attorney general's office or in some cases, large counties. No motions requesting to move forward with an execution have been submitted.

Dann, a Democrat, said in 2006 before he became attorney general that he'd be open to a study on how the death penalty is applied. "I think we can do better," he said. "We need to make sure it's being applied fairly across all racial and socio-economic groups."

Dann has not made any public statements about what the Supreme Court decision means for Ohio. But the attorney general believes the ruling buoyed Ohio's lethal injection procedure - which, like Kentucky's, uses a three-drug regimen to sedate, paralyze and kill.

Dann's office is trying to coordinate with county prosecutors on cases that will begin moving forward, preparing to help them with any legal arguments that come from the other side, said Zach Swisher, chief of the criminal division in Dann's office.

"Because the process used in Kentucky is substantially similar to that in Ohio, we're looking at it that it's likely the process in Ohio will also be found constitutional," Swisher said.-------------------------------------------------------------------I'm hoping some of the lawmakers and DA's in the sorry state of Ohio will start making some noise about this. Hell he could have written the opinion by now. There's not that much to study. I understood it in like 10 minutes.

COLUMBUS, Ohio (AP) - The state took its first step toward resuming lethal injections Wednesday, requesting a new execution date for a convicted murderer who spread his victim's dismembered body over parts of Ohio and Pennsylvania.

Kenneth Biros was one of three death row inmates in Ohio who lost appeals last week before the U.S. Supreme Court following the justices' determination that the cocktail of drugs Kentucky was using to execute criminals does not inflict cruel and unusual punishment. The suit had the effect of halting lethal injections nationwide. Ohio uses a drug cocktail similar to Kentucky's.

The 49-year-old Biros came within hours of death last March before the nation's high court called it off, ruling that Biros should be allowed to join other inmates who protested Ohio's lethal injection process in court.-------------------------------------------------------------------It looks like Ohio finally accepted an invitation to the party.

The Lucas County Prosecutor's Office has asked the Ohio Supreme Court to set an execution date for Gregory L. Bryant-Bey, a Toledo native who murdered two men in 1992.

Bryant-Bey, 52, has been on death row for 14 1/2 years since his conviction for the robbery and murder of Dale Pinkelman, who owned Pinky's Collectibles hobby shop in North Toledo.

He also was convicted of the robbery and murder of Peter Mihas, who owned The Board Room restaurant in downtown Toledo.

Bryant-Bey has exhausted the appeals process and remains incarcerated at the Ohio State Penitentiary in Youngstown.

The U.S. Supreme Court declined earlier this year to hear his case after a September ruling by the U.S. 6th Circuit Court of Appeals in Cincinnati upheld his November, 1993, conviction for

Mr. Pinkelman's murder.

Last week, the prosecutor's office requested the Ohio Supreme Court issue a death warrant and set a date for his lethal injection, the state's only execution method.

County Prosecutor Julia Bates said that Bryant-Bey has had several execution dates through the years that have come and gone through his appeals.

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"This case started many, many years ago," Mrs. Bates said.

Richard Kerger, attorney for Bryant-Bey, said yesterday that he does not plan to oppose the prosecution's motion but hopes to stop the execution by other means.

Mr. Kerger said it's his understanding that Bryant-Bey would need an execution date to join an ongoing civil rights lawsuit challenging Ohio's three-drug method of lethal injection as cruel and unusual punishment.

A federal judge in Columbus could then grant an emergency stay delaying Bryant-Bey's execution while the lawsuit sorts itself out.

Mr. Kerger said he is undeterred by the April 16 U.S. Supreme Court decision that upheld a lethal injection process in Kentucky that is similar to the sedate, paralyze, and kill method used in Ohio.

"Some of us believe Ohio's [method] is still deficient," Mr. Kerger said. "Lawsuits have been initiated [in federal court in Columbus] already, and Mr. Bey will be joining them. Hopefully, that will lead to a stay of the execution."

County prosecutors anticipated the move and asked the court in their motion to give Bryant-Bey an execution date regardless because the inmates' civil-rights lawsuit likely would fail.

"There is no reason for this court to delay setting an execution date in this case," the motion states.

Mr. Pinkelman's body was found face down on the floor of his North Towne Square shop in August, 1992. Police, with the help of an informant, connected Bryant-Bey to Mr. Mihas' murder in November, 1992. Bryant-Bey confessed to that murder.

Police noticed striking similarities between the two murders; both men died from a single stab wound in the chest, with their pants removed and their shoes lined up neatly beside their bodies.

Investigators also found Bryant-Bey's match to a palm print in Mr. Pinkelman's shop.

Bryant-Bey initially was sentenced to life with the possibility of parole for the Mihas murder, and later unsuccessfully tried to keep evidence from those proceedings from being used during the Pinkelman trial.

In 1993, he was convicted of Mr. Pinkelman's murder and sentenced to death.

ELYRIA, Ohio - A judge in northern Ohio has ruled that Ohio must stop using two of the three drugs administered in lethal injections.

Today's ruling from Lorain County Common Pleas Judge James Burge (burj) comes in the case of two murder defendants who say the state's execution method doesn't provide the quick and painless death required by Ohio law.

Two anesthesiologists had testified that one drug (sodium thiopental) would be enough to kill the inmate and that the other two drugs increase the risk of suffering.

The ruling is likely be appealed to the state Supreme Court.

Ohio has executed 26 inmates since it resumed putting prisoners to death in 1999.

tramoore

Ohio must stop using a common combination of 3 chemicals to execute condemned inmates because they may produce excruciating pain, a state court judge there ruled Tuesday.

Then, in what legal experts said was a first, the judge instead ordered the state to start using a single large dose of barbiturate, common in animal euthanasia.

The decision is an exception to recent judicial trends in the wake of the United States Supreme Court's decision in April in Baze v. Rees, which upheld Kentucky's lethal injection protocol, similar to the one used in Ohio.

There have been 5 executions -- 2 in Georgia and one each in Mississippi, South Carolina and Virginia -- since Baze ended a de facto 7-month moratorium. And Texas is to resume executions on Wednesday.

The Texas Court of Criminal Appeals issued rulings Monday that rejected challenges from five death row inmates to lethal injections there, which also rely on the three-chemical cocktail. Karl Chamberlain, who raped and murdered a 30-year-old woman in 1991, is scheduled to be executed on Wednesday.

The Baze decision did not foreclose all challenges to lethal injections under the Eighth Amendment, which bars cruel and unusual punishment. But it said challengers must show a demonstrated risk of severe pain along with a feasible alternative that would significantly reduce that risk.

The Ohio judge, James M. Burge of the Lorain County Court of Common Pleas in Elyria, appeared to concede that a constitutional challenge to the Ohio protocol would fail under Baze. Judge Burge based his decision instead on an Ohio law requiring that lethal injections use "a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death."

Baze, Judge Burge wrote, said the Constitution did not require the avoidance of all risk of pain. The Ohio law, by contrast, he said, "demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful."

The three chemicals used in Ohio and elsewhere are a sedative, a paralyzing agent and a drug that stops the heart. If the 1st is administered improperly, Judge Burge wrote, the 2nd and 3rd chemicals can give rise to suffocation and intense pain.

Commissions appointed to study lethal injections have questioned the three-chemical combination, as have some judges, saying it is cumbersome and risky. But Judge Burge was the 1st judge to require a sedative-only protocol, experts in the field said.

The case was brought by Ruben O. Rivera and Ronald McCloud, who have been charged with capital crimes but have not yet been tried. The state had sought to halt the proceeding before Judge Burge as premature, but the Ohio Supreme Court declined to intercede. Mr. Rivera is charged with killing a man during a robbery. Mr. McCloud is charged with raping and killing a woman.

Elisabeth A. Semel, the director of the Death Penalty Clinic at the University of California, Berkeley, welcomed Judge Burge's ruling.

"It is likely to reduce the risk of executions that cause suffocation and excruciating pain," Professor Semel said.

A spokeswoman for the Ohio attorney general's office said lawyers there were reviewing the decision.

The last execution to be carried out before the de facto moratorium was in Texas, and it was the subject of controversy. The presiding judge on the Court of Criminal Appeals, Sharon Faye Keller, closed the courthouse at its regular time, 5 p.m., turning back an effort by a death row inmate to file appeal papers a few minutes later. The inmate, Michael Richard, was executed that evening.

Opponents of the death penalty in Texas said they had hoped the criticism that followed that episode would inform the court's decisions on the recent lethal injection challenges.

"Those of us who thought the court was taking a thoughtful and rigorous look at this were wrong," said David R. Dow of the Texas Defender Service. "I don't think the court has shown the interest in really developing a coherent body of law, but instead reacts from one decision to the next like a pinball."

Mr. Chamberlain, scheduled to die on Wednesday, would be the 406th prisoner to be executed in Texas since the Supreme Court reinstated the death penalty in 1976.

"Texas is still Texas," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment. "They are the ones with the most dates coming up, and by the year's end I'm quite confident they will lead the country in executions."